ITO, CHURU V. Late Shri Narayanmal Tantia, SUJANGARH

ITA 287/JODH/2008

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54377 (ITAT-JODHPUR)
• Duration Of Justice: 3 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 30-11-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 23-04-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Gift

Judgement Text

1 ITA 287-08 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NO. 287/JODH/2008 ASSTT. YEAR : 2003-04. THE INCOME-TAX OFFICER, VS. LATE SHRI NARAYANMAL TANTIA WARD-2, S/O SHRI GANGADHAR TANTIA CHURU. THROUGH L/H SHRI KISHAN GOPAL TANTIA, BIDASAR, TEHSIL. SUJANGARH. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MAHESH KUMAR RESPONDENT BY : SHRI AMIT KOTHARI DATE OF HEARING : 30.11.2011 DATE OF PRONOUNCEMENT : 09.12.2011. ORDER DATED : 09.12.2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY DEPARTMENT AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2003-04. 2. THE DEPARTMENT IS OBJECTING IN DELETING THE ADDI TION OF RS. 92,618/- MADE ON ACCOUNT OF UNEXPLAINED AGRICULTURAL RECEIPT. 3. THE ASSESSEE HAS SHOWN AGRICULTURAL INCOME OF RS . 2,23,884/-. AS PER DETAILS OF INCOME FROM AGRICULTURAL LAND IT IS SEEN THAT TOTAL AGRICULTURAL RECEIPTS WERE RS. 2,72,118/- AND EXPENSES WERE SHOWN AT RS. 48,230/- AND REMAINI NG WAS SHOWN AS INCOME FROM AGRICULTURAL PRODUCE. THE DETAILS IN RESPECT TO SA LE OF AGRICULTURAL PRODUCE, CERTIFICATE 2 FROM MANDI SAMITI AND DETAILS OF SALE IN CASH WERE FILED. AFTER CONSIDERING THE DETAILS OF AGRICULTURAL LAND, THE ASSESSING OFFICER ACCEPTED A GRICULTURAL INCOME AT RS. 1,40,000/- AND REMAINING AMOUNT OF RS. 92,618/- WERE TAKEN AS INCOME FROM OTHER SOURCES. HOWEVER, THE LD. CIT (A) HAS DIRECTED THE ASSESSING OFFICER TO TREAT THE ENTIRE INCOME FROM AGRICULTURE. 4. THE LD. D/R PLACED RELIANCE ON THE ORDER OF THE ASSESSING OFFICER. 5. ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESS EE PLACED RELIANCE ON THE ORDER OF THE LD. CIT (A). 6. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD, WE FIND NO INFIRMITY IN THE FINDING OF LD. CIT (A). IT IS SEE N THAT ASSESSEE OWNS 34.4 BIGHA OF AGRICULTURAL LAND, OUT OF WHICH 10.5 BIGHA ARE IRRI GATED LAND AND THERE IS NO DISPUTE IN IT. THE ASSESSEE HAS GIVEN THE LAND FOR CULTIVATION TO OTHERS FROM WHOM 50% NET RECEIPTS HAVE BEEN RECEIVED BY THE ASSESSEE. THERE IS NO DI SPUTE IN THIS REGARD ALSO. IT IS FURTHER SEEN THAT SIMILAR AGRICULTURAL INCOME HAS BEEN SHOW N FOR LAST SO MANY YEARS AND IN ALL THOSE YEARS THE AGRICULTURAL INCOME HAS BEEN ACCEPT ED BY THE DEPARTMENT. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE CONFIRM THE FINDI NGS OF LD. CIT (A) ON THIS ISSUE. 7. NEXT TWO GROUNDS I.E. GROUND NOS. 2 AND 3 ARE AG AINST DELETING ADDITIONS OF RS. 9,51,000/- AND RS. 3,45,000/- MADE BY ASSESSING OFF ICER UNDER SECTION 69. 8. THE LD. D/R STRONGLY STATED THAT LD. CIT (A) HAS NOT GIVEN ANY INDEPENDENT FINDING IN RESPECT TO DELETION OF THESE ADDITIONS AS HE MER ELY ACCEPTED THE CONTENTION RAISED BEFORE HIM ON BEHALF OF THE ASSESSEE. IT WAS ALSO SUBMITTED THE ASSESSING OFFICER WAS NOT ALLOWED ANY OPPORTUNITY TO EXAMINE THE VERACITY OF THE DETAILS FILED BEFORE LD. CIT (A). IT WAS FURTHER SUBMITTED THAT THOUGH BOOKS OF ACCOUNTS WERE MAINTAINED BUT THE CONTENTION 3 OF THE ASSESSEE THAT CASH DEPOSITED OUT OF BOOKS OF ACCOUNT WAS NOT ASCERTAINED, NEITHER COPY OF LEDGER ACCOUNT IS PLACED ON RECORD NOR ANY OTHER DETAILS WERE GIVEN TO THE ASSESSING OFFICER FOR CONFRONTING. ACCORDINGLY IT WAS SUBMITTED THAT BOTH THESE MATTERS SHOULD GO BACK TO THE FILE OF ASSESSING OFFICER TO EXAMINE THE SAME AFRESH. 9. ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESS EE STRONGLY OBJECTED THE CONTENTION OF THE LD. D/R. IT WAS ALSO SUBMITTED THAT ALL THE SE DETAILS WERE FILED BEFORE ASSESSING OFFICER, BOOKS OF ACCOUNTS WERE ALSO PRODUCED WHICH HAS BEEN TAKEN INTO CONSIDERATION BY LD. CIT (A) AND THEN ONLY HE HAS ALLOWED THE ISS UE IN FAVOUR OF THE ASSESSEE. 10. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, WE FIND WEIGHT IN THE CONTENTION OF THE LD. D/R THAT THE IS SUE HAS NOT BEEN EXAMINED BY LD. CIT (A) IN RIGHT PERSPECTIVE. IT IS SEEN THAT A SUM OF RS. 5 LACS AND RS. 4.51 LACS WERE RECEIVED AS GIFT FROM SHRI MANOJ DAYARAM GARG AND S HRI RAJ KUMAR B. AGARWAL. IT IS FURTHER SEEN THAT BOTH THESE DONORS RESIDING IN BOM BAY AT DIFFERENT PLACES. HOWEVER, CHEQUE FOR GIFT HAS BEEN ISSUED OF THE SAME BANK I. E. BHARAT CO-OPERATIVE BANK LTD., GOREGAON AND CHEQUE NUMBER IS ALSO OF THE SAME SERI ES AND ON THIS REASON THE ASSESSING OFFICER HAS NOT ACCEPTED THESE GIFTS AS GENUINE. H OWEVER, THE LD. CIT (A) HAS ACCEPTED THESE GIFTS AS GENUINE. 11. THE LD. COUNSEL OF THE ASSESSEE HAS STATED THAT BOTH THE DONORS ARE RELATIVE AND THEY HAVE ACCOUNT IN ONE BANK. THEREFORE, THE REASO N FOR REJECTING THE GENUINENESS OF THE GIFT WAS NOT JUSTIFIED AT THE END OF THE ASSESSING OFFICER, AND LD. CIT (A) WAS JUSTIFIED IN ACCEPTING THE CLAIM OF THE ASSESSEE. THE CREDITWOR THINESS OF THE DONORS IS ALSO IN DOUBT AS NO POSITIVE EVIDENCE WAS FILED. THEREFORE, WE A RE OF THE CONSIDERED VIEW THAT THIS ISSUE SHOULD GO BACK TO THE FILE OF ASSESSING OFFIC ER TO EXAMINE THE GENUINENESS OF THE 4 GIFT ONCE AGAIN. THE ASSESSEE IS ALSO ADVISED THAT HE SHOULD CO-OPERATE WITH THE ASSESSING OFFICER BY PROVIDING DETAILS TO PROVE THE GENUINENE SS OF THE GIFT. 12. SIMILARLY, THE ISSUE IN RESPECT OF CASH DEPOSIT IN THE BANK IS ALSO RESTORED AS IT IS NOT ASCERTAINABLE THAT CASH DEPOSITED IN THE BANK A CCOUNT WAS OUT OF THE CASH WITHDRAWAL FROM THE BOOKS OF ACCOUNT ITSELF. THEREFORE, THIS ISSUE IS ALSO RESTORED TO THE FILE OF ASSESSING OFFICER TO ASCERTAIN WHETHER THE CASH DEP OSITED IN THE BANK WAS OUT OF WITHDRAWAL FROM THE BOOKS OF ACCOUNT AND IF IT IS F OUND THAT THE DEPOSIT WAS OUT OF BOOKS OF ACCOUNT, THEN THERE IS NO QUESTION OF MAKING ANY ADDITION. ACCORDINGLY WE RESTORE THIS ISSUE ALSO. 13. IN THE RESULT, APPEAL OF THE DEPARTMENT IS PART LY ALLOWED FOR STATISTICAL PURPOSES. 14. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09 .12.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, COPY FORWARDED TO :- THE ITO WARD-2, CHURU. LATE SHRI NARAYANMAL TANTIA THROUGH L/H SHRI KISHAN GOPAL TANTIA, SUJANGARH. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 287/JODH/2008)) BY ORDER, AR ITAT JODHPUR.